The Biggest Stories of the Week (May 4, 2013)

Did you miss any of the big stories this week? Want to find out how the pieces fit together? You're in the right place. It was a fairly quiet week with a number more mild stories. Unfortunately, the past few days also saw layoffs at Square Enix in Europe and Glu Mobile's Kirkland office (the home of Griptonite).

Did WB and 5th Cell violate copyright law?

On Thursday, we told you that WB and 5th Cell, publisher and developer of the Scribblenauts series, could potentially be in a mess of legal trouble. A nine count suit was filed by two gentlemen over the inclusion of two elements that can be conjured using Maxwell's pad.

Charles Schmidt and Christopher Torres are suing the duo over inclusion of "keyboard cat" and "nyan cat" in multiple Scribblenauts titles. As it turns out, those silly internet memes are actually trademarked. Usually this would be a fairly straightforward matter. Had a trademark been granted and the legal department(s) for the two corporations behind the games failed to perform due diligence (or worse, ignore the ownership), Schmidt and Torres would be walking away with some money.

That isn't the case, though. Schmidt and Torres did not file until 2010, the year after the first Scribblenauts (which included the two memes) was released. The trademark filing for "keyboard cat" shows that its first digital commercial was in 2010. The trademark for "Nyan cat" (first commercial use in 2011) is a bit more telling, as it seems to be specifically tailored to address Scribblenauts. It states,

Computer application software for use with mobile phones and portable media players, namely, software for manipulating a character through a series of challenges displayed on the device's screen or monitor.

There are a number of Nyan Cat apps and games on both iOS and Android, which also fit this description. Even without the filings in place, both men can clearly evidence use of these terms and images prior to the inclusion in Scribblenauts. It will make the case harder to prove, but not impossible.

Given the timing, the question then becomes whether any cat playing a keyboard could be mistaken for Schmidt's cat, Fatso, and if "Nyan Cat" is a direct reference to Torres' creation. Even without proper trademark and copyright filings in place when the first title in the series arrived to market, 5th Cell and WB could be in trouble. The inclusion of these combinations in the older series iterations that required a greater level of specificity than Scribblenauts Unlimited on the Wii U, is telling. These combinations were deliberately included and generate on-screen figures that look and perform in a way that evokes a connection to the memes.

Schmidt has successfully used his "keyboard cat" creation for licensing purposes, recently pairing with Wonderful Pistachios for a television commercial. The official Nyan Cat website has a store that offers apparel and jewelry and also links to the aforementioned apps and games. Both of the plaintiffs are using their creations for monetary gain, which also could prove problematic for WB and 5th Cell. Given that there is licensing related to both cat properties, a court could find that the inclusions in Scribblenaut games creates a perception of authorized use and, therefore, dilutes the brands that Schmidt and Torres have created. If there is brand confusion that emerges from the inclusion in the games, it could also be damning for WB and 5th Cell.

A number of our commenters on the original felt that that this case was frivolous. However, trademarks and copyrights must be vigorously defended each and every time there is an unauthorized use. Failure to do so could weaken future attempts to protect the ownership. It is in the best interest of copyright holders, especially in the case of such a visible use, to pursue action.

In short, the only difference between WB and 5th Cell using Mickey Mouse or Master Chief and keyboard and Nyan cats is the timing of the trademark filing. Even though the "brands" don't have the same power, they are still owned properties. I would not be surprised to see this settled before it reaches the courtroom.